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SLS Week one Lecture - All notesScoish Legal System – Week OneLecture One – Head One: Introducion to the course; essenials; civil and criminal jusice system.SLS Lecture Week One – Handout 1AThe Mechanics of the courseIn this course we will learn about The Scoish Legal System and all about its knowle...

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Such a power is called an enabling power. The terms of the Act in which the enabling power is established set out the limits for the operation of the power, and the power can only be exercised for the purposes set out in the parent legislation. “Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside the statutory powers pursuant to which it was purportedly made.” Public Law Project v Lord Chancellor [2016]UKSC 39, at para [23] per Lord Neuberger. (a) Regulations (the default type of subordinate legislation) Prior to March 2014 generally used to give detail in secondary legislation of a scheme where general principles are set out in the main Act now used for that purpose or to provide new rules. (b) Orders (prior to statement by the Leader of the House of Commons in March 2014) Prior to March 2014 subordinate legislation providing new rules, not merely giving details to established principles (c) Rules Provisions to determine the procedures to be used by certain bodies or within certain processes or regulatory regimes. (d) Commencement regulations (previously commencement orders) A statutory instrument which is designed to bring into force part or all of an Act, where the power to bring the Act into force is delegated to ministers. You can find commencement regulations when looking on http://legislation.gov.uk because each commencement regulation has the statutory instrument numbering and is numbered “(C.[number])” as well. The next differs from the others in that the same name covers two types of situation. One where the legislation is primary legislation, and one where the legislation is subordinate legislation. (e) Orders in council Issued by the Queen with the advice of the Privy Council (in practice the government) made under either (i) the royal prerogative (in which case the Order in Council is primary legislation and the Order is typically called a prerogative order), or (ii) powers conferred by primary legislation (in which case the Order in Council is subordinate legislation). (do not confuse either with an Order of Council, which is a power conferred on the Privy Council alone to act often used for the regulation of processional bodies) For some guidance from the UK Parliament on statutory instruments and their consideration see https://www.parliament.uk/about/how/laws/secondary-legislation/ and the House of Commons briefing paper referred to above. 2.

Scottish subordinate legislation

Powers to make orders or regulations or rules applicable in Scotland may have been conferred by Acts of the UK Parliament or by Acts of the Scottish Parliament. Some will be made by UK statutory instrument, some will be made by Scottish statutory instrument. Under Scotland Act 1998, s 53 powers previously held by UK government ministers in relation to Scotland were transferred to the Scottish ministers. This can include areas which are within the devolved legislative competence of the Scottish Parliament under ss 28 and 29 of the Scotland Act 1998, but can also cover some areas where power to act administratively or to make subordinate legislation is transferred to Scottish ministers (thereby potentially going beyond the normal ss 28 and 29 constraints which apply only to Acts of the Scottish Parliament).

On Scottish statutory instruments see Interpretation and Legislative Reform (Scotland) Act 2010, ss 27 – 37 and Scottish Statutory Instruments Regulations 2011 (SSI 2011/195) The types of Scottish statutory instrument are set out in s 27 of the Interpretation and Legislative Reform (Scotland) Act 2010 and includes regulations, orders, rules, orders in council (all as defined above) and two special forms of Scottish statutory instrument that regulate the procedure of courts. (a) Act of sederunt Where the Court of Session makes rules governing the procedure of cases in that court. (b) Act of adjournal Where the High Court of Justiciary makes rules governing the procedure of cases in that court. Note that in the Parliamentary Counsel Office, Drafting Matters (https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2018/12/draftingmatters/documents/00543712-pdf/00543712-pdf/govscot%3Adocument/00543712.pdf?forceDownload=true ) which is the official guidance published by Scottish parliamentary counsel on drafting legislation it provides at p 23: “Form of subordinate legislation Rules: A power in a Bill for the Scottish Ministers to make subordinate legislation exercisable by Scottish statutory instrument should be expressed as a power to make regulations rather than as a power to make an order, rules or any other form of instrument. This applies to powers which are amended into existing Acts of the Scottish Parliament or UK Acts as well as to stand-alone powers in Bills. Exception: There is an exception for powers to make rules of procedure. A power may be expressed as a power to make rules if it is a power to make procedural rules for a court, tribunal or other body.” Thus, any power to make subordinate legislation within legislation now will, as in England, provide that it is a power to make regulations, unless it is a power to make rules of court procedure, for example. For some guidance on how the Scottish Parliament deals with Scottish statutory instruments see the following guidance issued from the Delegated Powers and Law Reform Committee during the fifth session of the Scottish Parliament. https://www.parliament.scot/S5_Delegated_Powers/Guide_to_SSIs.pdf More detail on the form, divisions, and making of subordinate legislation appears later. PART 2 – PRIMARY LEGISLATION Advanced reading The following texts give you an overview of the legislative process detailing the personnel involved, what the personnel involved do, and the preparation of legislation. They are more advanced than you need for the class but it is worth being familiar with where to find them. These are in addition to the discussion in Dewart. Greenberg, Laying down the law (2011)

Cabinet Office, Guide to Making Legislation (2017) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/645652/Guid e_to_Making_Legislation_Jul_2017.pdf Thomas Glyn Watkin with Daniel Greenberg, Legislating for Wales (2018) chs 2, 3, 5 and 6. (This gives a very useful overview of the policy formulation process leading to the preparation of legislation. While this has a Welsh focus the broad issues identified are the same in Scotland). As an exercise for this part of the class think of the following.      

What thing would you like the law to do? It can be as silly or as serious as you like. For example: Ban the private ownership of kangaroos? Make wearing facemasks around the University campus compulsory? Control the supply and consumption of chocolate? Introduce affordable rent controls on private rented housing? In this section of the class we are going to consider how to convert ideas into law. How would you do it? How do you convert a one line pitch into an Act of Parliament or an Act of the Scottish parliament?

A – Where does legislation come from? The purpose of this section is to get you thinking about where legislation comes from, in terms of ideas and policies, the preparation of legislation, and the way in which it is enacted. Being aware of these factors is important when you read and construe legislation because it helps you understand the constraints under which legislation is prepared, and some of the factors which go towards the eventual wording used. This also helps you understand who legislation is written for, the impact this has on concepts of legislative intention (which underpin various approaches to statutory interpretation) and on the approach to construction and interpretation of legislation. So where does legislation come from? Any piece of legislation begins as an idea. Where do these ideas come from?       

Manifesto commitments Work done in government departments Individual MPs or MSPs (either personal ideas or lobbied by groups outside) Civic society Pressure groups Law reform projects carried out by Scottish Law Commission or Law Commission for England and Wales Responding to events (eg coronavirus, Olympics, terrorism)

How do you convert an idea into a policy that can be made into law? Most policy ideas which end up in legislation involve the development of policy by the government but the points raised here apply generally in policy formulation because if policy is not thought through with detailed consideration the end product of legislation will potentially be too wide for the purpose required, or not wholly satisfactory. You need to tease out the idea and ask probing questions about what has to be done to achieve and implement it. What does the idea seeks to achieve, the way to implement and consequences of doing so? Who or what will this affect? People or things or places? When will it affect them? Where will it affect them? How will it affect them?

This expands to consider the impact on people, things, and places not intended to be directly affected by the idea. You need to consider the impact on particular groups (the Equality Act 2010 identifies various protected characteristics and considering the impact on these should be carried out) You need to consider the financial and economic impact, or impact on business. Each stage of this helps you develop your policy, help you determine whether you need a law at all, what possible options are available to carrying out these policy ideas. Once ideas are worked up often they are consulted on. There can be a consultation paper or consultation document. At UK level when ideas were worked up in a preliminary way the government would publish a green paper, or if worked up policy ideas in a more detailed way a white paper. Sometimes the idea may generate some policy ideas and work on policy analysis and evaluation, and taking evidence on the existing problems and how to address them, may be passed to independent reviews. Sometimes these are detailed formal processes such as royal commissions. Sometimes an independently chaired review supported by government staff, such as the committee on Conveyancing legislation and practice chaired by Professor JM Halliday, which reported in 1966, and which made recommendations ultimately implemented by the Conveyancing and Feudal Reform (Scotland) Act 1970 and the Land Tenure Reform (Scotland) Act 1974. Sometimes matters are referred to the Scottish Law Commission or the Law Commission of England and Wales, government funded law reform bodies set up under the Law Commissions Act 1965. As well as receiving references to look at topics from the government the Scottish Law Commission and Law Commission for England and Wales set out their own general ideas for policy work by having programmes for law reform which determine their work for fixed periods of time. When policy ideas are worked up by the Scottish Law Commission or Law Commission for England and Wales preliminary ideas were consulted on via a consultative memorandum or consultation paper but now are consulted on using a discussion paper. The final ideas from the Scottish Law Commission or Law Commission for England and Wales are published in a report. When a report is published by either law commission the report will usually contain as an appendix a draft bill which would implement the policy recommendations in the report. This draft bill is accompanied by explanatory notes (which accompany a bill and explain what clauses mean and are discussed later on). When there is a Scottish government consultation the consultation is often accompanied by a draft bill where the policy has been developed into legislative language (in the way discussed in the next section). Where there has been a report from the Scottish Law Commission the Scottish government will usually consult on it, giving an indication as to areas where they may disagree with the Scottish Law Commission approach. This consultation will usually focus on the draft bill which was annexed to the Scottish Law Commission report. How do you convert policy into legislation? The bill team – working up policy and instructions In government there is a bill team which comprises policy advisers working within the civil service and lawyers from the government (in Scotland, the Scottish Government Legal Directorate). The bill team works up the policy and consults with the lawyers who review the existing law, and assess whether new law is necessary and consider potential areas of reform. The lawyer also acts as the point of communication between the bill team and the drafter (parliamentary counsel). The lawyer will identify gaps in the policy, or contradictions. The lawyer should be an expert in the policy area. The lawyer prepares instructions to parliamentary counsel. In the instructions the

lawyer translates the policy and identifies with parliamentary counsel what the new legislation is attempting to achieve, highlighting the law in which the legislation must fit. The role of parliamentary counsel – drafting the legislation The drafters of legislation work in Parliamentary Counsel Office, and work in teams. Parliamentary counsel are civil servants working for the Scottish Government. The drafter prepares the legislation, and determines its structure, the wording of the legislation, and will critically analyse the instructions and identify gaps in thinking and policy. Parliamentary counsel come from various backgrounds, and it will be unusual for the drafter to be an expert within the specific area in which the legislation is to be prepared. However, drafters are experts in how legislation works, and how it applies. Parliamentary counsel will prepare drafts of provisions. The draft legislation is known as a draft bill. The interaction between parliamentary counsel and the bill team Parliamentary counsel will send the draft bill to the lawyer and the bill team. The bill team will review the draft to ensure that the bill implements the policy. Sometimes gaps in the policy arise during the drafting of the bill, gaps and problems in policy will be exposed by trying to formulate the policy in legislative language. This process will go on for some time until the draft bill is ready to be introduced as a bill into Parliament. Scottish Parliament – pre legislative vetting When the bill is ready in Scotland it is submitted to the Presiding Officer’s office at the Scottish Parliament for vetting to ensure it is within legislative competence because when in parliament any bill requires a certificate from the presiding officer to confirm whether in the presiding officer’s view it is within or outwith legislative competence. (For discussion of this see Chris McCorkindale and Janet Hiebert, “Vetting bills in the Scottish parliament for legislative competence” (2017) 21 Edinburgh Law Review) Once the bill is in Parliament the interaction between policy team and parliamentary counsel continues as consideration is given to evidence on the bill, stakeholder responses, policy issues arising, matters discussed in parliamentary consideration, leading to amendments of the bill, and consideration of amendments introduced by parliamentarians. The parameters of drafting – constraints on the drafting of provisions When parliamentary counsel is drafting legislation remember counsel operates subject to various constraints. These are usefully summarised in Francis Bennion, “Statute law obscurity and the drafting parameters” (1978) 5 British Journal of Law and Society 235 and in Francis Bennion, Statute Law (3rd edn, 1990), chapter 3. Bennion divides the constraints into type broad categories: preparational drafting parameters; and operational drafting parameters. The preparational constraints relate to satisfying the bill team with the drafts, satisfying the minister who is responsible for piloting the bill through parliament, and getting the bill through parliament. He mentions procedural legitimacy; timeliness; comprehensibility; debatability; acceptability; and brevity. The first constraint is procedural legitimacy ensures the bill complies with rules of parliamentary procedure (which impacts on the form of the bill), and formal requirements (such as the vetting of legislation before introduction to ensure it is within legislative competence in the Scottish Parliament). The second constraint is the impact of timeliness which indicates the general time pressures of preparing and passing legislation. Every year there is a legislative programme set out by the government (at UK and Scottish level). In the Scottish Parliament legislation can run through the whole of a parliamentary session but in the UK Parliament unless special savings are made legislation will fall at the end of a parliamentary year. Legislation has to

be prepared to fit within these timetables, and then to work within broader issues of timetabling which take place during the parliamentary process (for example, how many days consideration a bill has at each stage of the parliamentary proceedings (the stages are considered below)). Timetabling can cause particular problems in other situations, for example, where there is an emergency and legislation is needed quickly. The coronavirus legislation at UK Parliament and Scottish Parliament level in 2020 (Coronavirus Act 2020, Coronavirus (Scotland) Act 2020, Coronavirus (Scotland) (No 2) Act 2020) was prepared at great speed to respond to the requirements to introduce various schemes for a number of areas of law (look at the contents for each piece of legislation and see how many legal areas are covered) and to ensure there was legislative support for lockdown regulations. This legislation was needed quickly, and given the speed, and complexity, required multiple drafters to work on them. Looking at this legislation can you compare the legislation looks with other legislation you have looked at and consider whether you can see any signs which show you how quickly the legislation was prepared, and are there any signs which show that many drafters and drafting teams were involved in working on them? Time pressures are especially relevant before a bill enters parliament, but continue when a bill is being considered in parliament. The third constraint Bennion identifies is comprehensibility. Bills are passed by parliamentarians and so the bill has to be comprehensible to them, preferably within the terms of the bill itself (but comprehensibility can be aided by supporting documentation, of which more follows). Comprehensibility impacts not just on language and the use of clear plain language if at all possible, but on the structure of the legislation (and see also the discussion of debatability below on this). This needs to be considered alongside the operational parameters detailed below. The fourth constraint is debatability. A bill is considered within parliament and is subject to debate. When a bill is being considered by parliament debates tend to take place in the order of the bill (although sometimes topics are grouped together in different ways for debates). But this means that the big debates on bills should arise before subsidiary debates. This impacts on the structure of legislation as it ensures the topics which generate the big debates come before the subsidiary topics. This leads to the advice from Thring that the key propositions and principles should be at the start of the bill (see Thring’s Practical Legislation (3rd edn, 2015) at pp 45 – 47). But this advice goes beyond being merely useful for parliamentary debating. It helps the reader of legislation too. “In short, the test of the arrangement of an Act or Part as respects the principle is this: If the reader, after mastering the first two or three sections, comprehends the whole drift of the Act or of the Part, the Act or Part is in that respect well arranged. The Act or Part is, as regards principle, ill-arranged in proportion as the principle is distributed throughout a number of sections, and broken up by conditions and provisions from which the reader has to extract it bit by bit. “This arrangement is to be recommended both for parliamentary and for practica...